Court name
Court of Appeal of Turks and Caicos Islands
Case number
CR-AP 13 of 2018

Joseph v. Regina (CR-AP 13 of 2018) [2019] TCACA 9 (22 March 2019);

Law report citations
Media neutral citation
[2019] TCACA 9
Coram
Mottley, P
Stollmeyer, JA
Hamel-Smith, JA

IN THE COURT OF APPEAL

TURKS AND CAICOS ISLANDS

CR-AP 13/2018

BETWEEN

JIM KELLY JOSEPH

APPELLANT

AND

REGINA

RESPONDENT

BEFORE:

The Honourable Mr Justice Mottley                     President

The Honourable Mr. Justice Stollmeyer          Justice of Appeal

The Honourable,Mr Justice Hamel-Smith      Justice of Appeal (Ag)

APPEARANCES:

Mr Ashwood Forbes and Ms Kerchelle Bain for the Appellant

Mr Clement Joseph and Ms Emanjaleek Dickenson for the Respondent

02, 05 November 2018; 22 March 2019

JUDGMENT

Stollmeyer JA

[1]           This is an appeal from a decision of Ramsay-Hale CJ of 02 August 2018, dismissing the Appellant's application to withdraw a plea of guilty and enter a plea of not guilty. On 05 November 2018, we granted leave to the Appellant to withdraw the appeal. This is the written judgment.

Background

[2]           The Appellant was charged with the keeping of a firearm and keeping of ammunition. He entered pleas of guilty and the matter was adjourned for sentencing. He subsequently applied to withdraw the plea of guilty. The application was dismissed.

[3]           At the outset of the appeal, Mr Joseph for the Crown took a point in limine, namely that the Court of Appeal has no jurisdiction to hear this appeal because it is an interlocutory appeal, and the Court of Appeal has no statutory or inherent jurisdiction to hear such an appeal.

[4]           Further, Counsel submits that a guilty plea does not constitute a conviction until and unless the accused is sentenced.

[5]           Section 6.1 of the Court of Appeal Ordinance provides

1. A person convicted on information in the Supreme Court may appeal to the Court under the provisions of this Ordinance—

(a)           against the conviction on any ground of appeal which involves a question of law alone;

(b)           with the leave of the Court, or upon the certificate of the judge of the Supreme Court before whom he was tried that it is a case fit for appeal, against his conviction on any ground of appeal which involves a question of fact alone or a question of mixed law and fact or upon any other ground which appears to the Court or the judge aforesaid to be a sufficient ground of appeal; and

(c)           with the leave of the Court against the sentence passed on his conviction unless the sentence is one fixed by law.

[6]           Under Section 6.1(a) a person convicted in the Supreme Court may appeal against a conviction on any ground of appeal which involves a question of law alone.

[7]           Section 6.1(b) provides for an appeal with the leave of the court, or on the certificate of the Trial Judge that it is a case fit for appeal on a question of fact alone or a question of mixed law and fact, or upon any other ground which appears to either the Court of Appeal or the Trial Judge to be a sufficient ground of appeal.

[8]           Section 6.1(c) provides for appeal against sentence passed on conviction unless the sentence is one fixed by law.

[9]           An appeal must therefore be against conviction unless it is against sentence "passed on ...conviction".

[10]         The issues to be determined are therefore narrow ones. First, at what stage of a trial is there a conviction and second, whether in the instant case there had been a conviction.

Analysis

[11]         The High Court of Australia was concerned with this issue in the context of a plea of autrefois convict. In deciding Maxwell v R 1 the Court reviewed extensively the decided cases in this regard. At page 308, per Dawson and McHugh JJ, reference was made to R v Tonks 2 where the Full Court of the State of Victoria said:

"The review of the authorities which we have made satisfies us that a plea of guilty does not of its own force constitute a conviction. In our opinion it amounts to no more than a solemn confession of the ingredients of the crime alleged. A conviction is a determination of guilt, and a determination of guilt must be the act of the court or the arm of the court charged with deciding the guilt of the accused. It may be that even a determination of guilt will not in all cases amount to a "conviction" for the latter term may be used in a particular context as meaning not merely a conviction by verdict where no judgment is given, but conviction by judgment [see Burgess v Boetefeur (1844) 7 Man & G 481; 135 ER 193 and Hales Pleas of the Crown, vol. 1 page 686]. But there must be at least a determination of guilt before there can be a conviction. There can accordingly be no conviction on a count to which an accused pleads guilty until by some act on the part of the court it has indicated a determination of the question of guilty. And there can be no conviction till then neither can there be a successful plea of autrefois convict".

[12]         As Dawson and McHugh expressed it in Maxwell:3

"Thus whilst a plea of guilty is a confession of guilt, it does not of itself amount to a conviction. A conviction does not occur until there is an acceptance of the plea amounting to a determination of guilt by the Court".

1 1996] 1 LRC 299

2 [1963] VR 121 at 127-128

3 at page 309

[13]         In R v Cole4 it was held that there is no conviction where a plea of guilty is entered until such time as sentence is passed. At page 267F, per Lord Parker CJ, it was said:

"... It is clear that it [the conviction] does not occur at the time of recording because otherwise it would be impossible for a judge to allow a plea to be changed, os is perfectly possible up to sentence and indeed in one of the cases a verdict of a jury itself was set aside before sentence. In the judgment of the court it only ranks as a conviction when the defendant is sentenced. This view is, to say the least, in accordance with common sense;...".

[14]         The determination of guilt forms only part of the judgment of the Court and "... it is the disposal of the case which results in the judgment of the Court in embodying a determination of guilt."5

[15]         It is clear from the authorities that for a conviction to be fully constituted, there must also be a final disposal of the matter. In the instant case this would have to be by way of passing of sentence, whatever that sentence might be.

[16]         As was also said in Maxwell6: "It is clear that [the trial judge here]...did not purport to dispose of the matter by accepting the Appellant's plea of guilty other than for the purpose of embarking on the sentencing process." That clearly was also the position in the instant case.

[17]         Again in the instant case, as was the position in Maxwell, there were no unusual features in this case which would displace the ordinary consequence that a determination of guilt would take place only upon sentence being passed on the Appellant.

[18]         It is clear from the provisions of the Ordinance that an appeal lies only on conviction unless it is an appeal solely against sentence. The instant case is not an appeal against sentence.

[19]         Because no sentence had been passed, the matter had not been finally determined. There was no completion of the case to the stage of conviction.

4[1965] 3 WLR 263

5Maxwel\ at page 309

6per Dawson and McHugh at page 310

[20]         Finally, if there is no conviction, then an appeal can only be regarded as interlocutory in nature, and this Court has no jurisdiction to entertain an interlocutory appeal in criminal matters.

[21]         In R v Collins 7the trial judge refused to order delivery of further particulars. On appeal, the Court of Appeal in England held that it had no jurisdiction under any statute, nor any inherent jurisdiction as counsel had submitted, to hear an interlocutory appeal. In the words of Salmon LJ:

“A court of appeal created by statute has no jurisdiction beyond that which Parliament confers upon it: R v Grantham 8; R v Jeffries 9. Even if we agreed with counsel for the applicant that it would desirable that we should have the powers to which he refers, we cannot call them into existence by assuming them"10

[22]         While that is a clear statement of the applicable law in England, the position is no different in the Turks and Caicos Islands. It was dealt with as recently as 2017 in Pinnacle Reef Limited and Others v The Proprietors Strata Plan 51 11where this Court said:

"[13] The jurisdiction of the Court of Appeal is solely by reference to its statutory provisions: Taylor v Lawrence [2002] 3 WLR 640 at 642B; Inversiones Globales Ltd v Hape [2000] TCAJ No. 12 Civil Appeal No 1 of 2000 at para 24. Since the Court is a creature of statute, it has no inherent jurisdiction, and the view has been expressed that any jurisdiction not expressly conferred may be said to have been impliedly excluded by the relevant statute: see Electrotec Services Ltd v Issa Nicholas (Grenada) Ltd [1998] 1 WLR 202 at 206D. Any inherent jurisdiction it may possess is the power to determine its own procedure and practice: Taylor at 642E."

[23]         Mr Forbes for the Appellant, having conceded that he was obliged to agree to the submission on behalf of the Crown that there had been no final determination of the matter in the Supreme Court, sought leave to withdraw the appeal and this was granted.

7 [1969] 3 All ER 1562

8 [1969] 2 All ER 545

9 [1968] 3 All ER 238

10 Collins at page 1563

11 Civil Appeal No 32 of 2014 at paragraph 13

Disposition

[24]         Leave to withdraw the appeal was granted. No order was made as to the costs of the appeal.

H. Stollmeyer

Justice of Appeal

I agree

E. Mottley

President

I agree

R. Hamel-Smith

Justice of Appeal (Ag)